scholarly journals The Role of the European Court of Human Rights in Ensuring the Right to a Fair Trial with the Republic of Latvia and Republic of Finland as an Example. Summary of the Doctoral Thesis

2016 ◽  
Author(s):  
◽  
Jilkine Vladimir
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Doctoral Thesis ◽  
European Court ◽  
The Republic ◽  
The Right

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

scholarly journals Ensuring the Right to a Fair Trial Pre-Trial Stage Criminal Process

2016 ◽  
Vol 3 (4) ◽  
pp. 133-141
Author(s):  
A A Tymoshenko
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Process ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The article considers the problem of respect for the right to a fair trial at the pre-trial stage of the criminal process. It is pro- posed to take into account the secondary role of pre-trial activity, whose task is to prepare materials for trial. This competitiveness for the prosecution is not allowed. Analysis of the European Court of Human Rights indicates sufficient blurring boundaries that separate statement of the facts of the presence or absence of a violation of Art. 6 of the European Convention «On Protection of Human Rights and Fundamental Freedoms» (the right to a fair trial). But in any case the decision is motivated by the observance of guarantees of access to justice. Hence, any infringement of the possibi

PRAVO NA POŠTOVANjE DOMA U PRAKSI USTAVNOG SUDA REPUBLIKE SRBIJE (UTICAJ PRAKSE EVROPSKOG SUDA ZA LjUDSKA PRAVA)

2021 ◽  
pp. 511-531
Author(s):  
Jelena Čanović ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Controversial Issues ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
European Standards ◽  
The Right

A special regime for the protection of the right to respect for home is provided with the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. With ratification of this Convention, the Republic of Serbia has undertaken the obligation to respect and effectively implement the rights guaranteed by the European Convention as a "minimum European standard". The role of the European Court of Human Rights in defining and determining the scope of basic human rights, so the right to respect for home too, is reflected in its rich practice, which greatly affects national legal systems. Thus, the European Court in its practice has defined the principles and criteria for providing protection of the right to respect for home. To monitor the used instruments for protection of the right to respect for home in the domestic legal order and their harmonization with European standards of protection, it is necessary to analyze the practice of the Constitutional Court of the Republic of Serbia, through which is reflected practice of regular courts as well. Considering that in the practice of the highest courts in our country, as well as in the practice of the Constitutional Court, the right to respect for home has been recognized recently, the lack of numerous theoretical discussions and practical analyzes of prominent controversial issues indicates the relevance of this topic about we write about.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

Bulgarian Military Courts and the Right to a Fair Trial

De Jure ◽  
2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Ilmira Ilieva ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
The Right

This article examines the organization and functioning of Bulgarian military courts to determine to what extent they are compatible with fair trial standards. The guarantees and institutional requirements for providing the right to a fair trial are analyzed in the light of the European Convention on Human Rights and the practice of the European Court of Human Rights. This research is focused on the issue whether Bulgarian military courts could provide a fair trial, held by an independent and impartial court, mainly with regard to civil citizens. For the purpose of the research is scrutinized the ECHR Judgment from 28.11.2019 on the case Mustafa vs. Bulgaria.

scholarly journals Exercising the right to a trial in a reasonable time in the Republic of Serbia

2007 ◽  
Vol 79 (9) ◽  
pp. 311-333
Author(s):  
Maja Omeragić-Pantić ◽  
Biljana Vujičić ◽  
Bojan Tubić ◽  
Rodoljub Etinski
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Current Status ◽  
National Strategy ◽  
Reasonable Time ◽  
Legal Remedies ◽  
European Court ◽  
The Republic ◽  
Judicial Procedure ◽  
The Right

Constitution and procedural laws explicitly guarantee right to a trial in a reasonable time. The procedural laws have been changed and some new solutions, which have to enable a trial in a reasonable time, were adopted. The Decision on establishing of national strategy of judicature reform was adopted, in order to make the judicature more efficient. However, the inquiries show that there are still some significant disadvantages which affect the right to a trial in a reasonable time. Despite the new legislative solutions, adopted in order to accelerate the trials, some of these solutions are not completely sufficient or their implementation in practice is not entirely adequate. The Decision on establishing of national strategy of judicature reform sets up the right analysis of the current status, as well as "therapy for the healing" of judicature. However, it seems that current measures are not in accordance with this therapy. Technical modernization of the courts is very slow and personal capacities, on the level of the associates, is declining instead of getting stronger. The biggest disadvantage of the present legal system, regarding the right to a trial in a reasonable time is the absence of the efficient legal remedies with which the party could accelerate the judicial procedure, respectively with which it could give damages caused by the breach of this right. This paper shows how strict are the criteria of the European court of human rights in Strasbourg related to it and that the existing legal remedies in our legal system are not sufficient to meet these demands. The confirmation of this conclusion came from Strasbourg, when this paper was already written, in the judgment V.A.M. v. Serbia of March 13, 2007.

Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law

2015 ◽  
Vol 4 (2) ◽  
pp. 303-332
Author(s):  
Salvatore Fabio Nicolosi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
International Human Rights ◽  
The Past ◽  
European Court ◽  
Triggering Factor ◽  
The Right ◽  
Human Rights Standards

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

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